Where does India figure in the debate? One has argued that in the name of a "mixed economy" that Jawaharlal Nehru wanted, the world’s largest democracy took the worst of capitalism and socialism and became a "mixed-up" economy. We in this country still have an opportunity to search for, and find, the best of both worlds. Or is one being too naive?

Thakurta's reference to Roger Bybee's critical piece on Zakaria indicates where his sympathies lie. Some of our contributors, who have shown an interest in the history of India's economic policy, and its future directions, may have something to say on Thakurta's article.

Sunday, June 28, 2009

I read A.G.Noorani’s article titled ‘Free Speech and Religion’ in the June 6th issue of EPW with interest wherein he argues that the March 26th resolution 7/19 of the Human Rights Council of Geneva on ‘Combating Defamation of Religions’ was entirely appropriate and criticizes Western opposition and Indian skepticism. As for the resolution itself which was previously discussed on this blog and elsewhere, it is generally consistent with Indian laws and India could therefore have justified virtually any position it took. Noorani however makes some additional points: (1) that defamation of religion is well recognized and ‘the distinction [between defamation and criticism] is well settled in law, politics and civic discourse’ (2) Citing the Danish cartoon controversy, he appears to suggest that blasphemous libel is no different from ordinary defamation (3) Western free speech arguments against blasphemy are false. All of these claims are debatable.

He cites Lord Scarman’s views expressed in his opinion in R v. Lemon (1979) to support these arguments. That judgment is however only a part of the record. The question in R v. Lemon (1979) was whether, in order to secure a conviction of blasphemous libel, it is necessary or not for the prosecution to prove the intent of the defendant to blaspheme (in addition to his intent to publish the allegedly blasphemous material). The Lords held, by a 3-2 decision that it is not required. Lord Scarman summarized his view as follows:

Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as bylaw established. It is not blasphemous to speak or publish opinions hostile to the Christian religion. or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves. Everyone who publishes any blasphemous document is guilty of the [offence] of publishing a blasphemous libel. Everyone who speaks blasphemous words is guilty of the [offence] of blasphemy.

Following this, the Law Commission, in a working paper in 1981 followed by a full report in 1985 recommended abolition of the offense. Here, it discussed in detail each of the points that he mentions. On the question of whether matter and manner may be distinguished for the purpose of the offense as Lord Scarman suggests, it said:

Frequently matter and manner cannot easily be disentangled and upon analysis it is often the message which repels as much as the language in which it is couched. That may well have been so in regard to much if not all of the material found to be blasphemous in reported cases. Matter which consists only of vulgar abuse or insults may thus on examination prove to be so insignificant in quantity and so insignificant as a social problem as scarcely to merit notice by the criminal law; and it seems to us that any wider categorization may indeed have adverse consequences for freedom of speech and communication.

Such restrictions would in particular have adverse consequences for what many would consider to be proper criticism of matters pertaining to religion and religious belief. Ridicule has for long been an acceptable means of focusing attention upon a particular aspect of religious practice or dogma which its opponents regard as offending against the wider interests of society, and in that context use of abuse or insults may well be a legitimate means of expressing a point of view upon the matter at issue…

On the question of extending a similar protection to other religions in a plural society (English common law only extended this protection to the Church of England) as Lord Scarman suggested and Noorani endorses, it noted:

The imposition of criminal penalties upon such abuse or insults becomes, in our view, peculiarly difficult to defend in the context of a “plural” or multi-racial, multi-religious society. Here one person’s incisive comment (or indeed seemingly innocent comment) may be another’s “blasphemy”, and to forbid use of the strongest language in relation, for example, to practices which some may rightly regard as not in the best interests of society as a whole would, it seems to us, be altogether unacceptable. But such would be the consequence if, as many of our commentators urged, a crime of blasphemy were to be extended to religions other than Christianity. Of course, such abuse or insults directed at the beliefs or practices of a particular religion may in substance amount to an attack upon adherents of that religion because of the views they hold. The line may be a fine one; but as we have emphasized above, if such attacks appear to be or become a real social problem, the appropriate response in our view is not to extend the law of blasphemy but rather to adapt the present offence penalizing the publication of matter likely to arouse hatred towards persons on account of their race so that it would penalize publication of matter likely to arouse hostility to others on account of their religious beliefs.

This is very similar to the Canadian delegate Terry Cornier’s view that ‘it is individuals who have rights and not religions’. Indeed, the Racial and Religious Hatred Act passed in 2006 incorporates this view. While making the publishing or distribution of offensive material with the intent to stir up religious hatred an offense, it explicitly declares that ‘Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytizing or urging adherents of a different religion or belief system to cease practicing their religion or belief system’ (section 29J). Clearly, there is nothing preposterous about it as Noorani suggests.

Quoting an article from The Economist regarding the Danish cartoon controversy, Noorani argues that ‘A living per­son caricatured thus would have a valid cause of action in law for libel. So would members of a religious community if the founder of the faith is thus libeled.’ Firstly, it was reported that the lower courts in Denmark had dismissed libel charges against Jyllands-Posten and the matter had been appealed in the Supreme Court. Secondly, unlike ordinary libel, neither the artistic nor other merits of the material nor a public good defense was available for blasphemous libel under English common law (Media Law by Sallie Spilsbury, 2000). Also, as the working paper noted, it was doubtful that dissemination could be prevented by application of criminal law as ‘special protection for the religious believer could lead to widespread flouting of legal sanctions by those wishing to focus attention upon its discriminatory character or to be seen as martyrs in the cause of freedom of expression’ and it ‘might well stimulate activities designed to display its unacceptable character and the impossibility of securing its proper enforcement’. Several previous episodes attested to this reality. William Foote, a journalist determined to bring down English blasphemy laws in the 19th century published irreverent pieces on biblical characters in his paper Freethinker including pictures depicting the ‘Comic Life of Christ’ and an image of the Almighty’s posterior. His prosecution however resulted in the widespread dissemination of the material turning him into a cause célèbre (Blasphemy in the Christian World by David Nash, 2007). Again, few people had heard of the gay newspaper or of James Kirkup before the Lemon case was brought to court. Clandestine distribution of the material afterwards helped it reach a much wider audience than it would otherwise have. If the idea is to protect society by preventing dissemination, it appears unlikely to have a salutary effect.

Finally, based on this recommendation and others (including a report by a select committee of the House of Lords delineating the various options in 2002), the offenses of blasphemy and blasphemous libel under the common law of England and Wales were abolished by the Criminal Justice and Immigration Act, 2008. Lord Scarman’s view is therefore no longer good law.

Noorani also refers on several occasions to ‘some US talk on free speech’. I have no idea what that means but it suffices to note that he cites no American case to buttress his claim that religions require special protection. The US Supreme Court has never ruled on blasphemy but it did hold the New York state law on sacrilege which was defined in very similar terms to be unconstitutional in Joseph Burstyn Inc. v. Wilson 343 US 495 (1952) ((Blasphemy: Verbal offense against the sacred from Moses to Salman Rushdie by Leonard W. Levy, 1995). The majority opinion in that case held: "In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor..." Justice Frankfurter, in an eloquent concurrence was even more explicit.

Though several states continue to retain blasphemy laws on their statutes, prosecution attempts ended in the early 1970s. It is virtually certain that any such censorship today would be struck down on First Amendment grounds (In the more recent National Endowment for the Arts v. Finley (1998), even Justices Scalia and Thomas did not dispute an artist's right to create indecent and disrespectful art).

Whatever one thinks of the resolution, some things are clear. Blasphemy in the West is headed to oblivion if not extinction – several countries have abolished it while others that retain the offence on their statute no longer enforce it. He says that ‘the issue is not freedom; it is self-indulgence with an eye on publicity’. With respect, this is a distinction without a difference. He further adds 'Such people falsely raised the banner of freedom and sailed with the anti-Muslim current in Europe'. I do not believe this either. Blasphemy laws in Europe have been shaped by centuries of struggle both within Christianity usually spearheaded by marginal sects such as Unitarians and Socinians against its dominant form as well as against Christianity led by the deists and others. From that standpoint, it is not difficult to see why preserving these hard earned freedoms is very much a matter of principle in these countries.

Saturday, June 27, 2009

Whither NMML?: A response from Ramachandra Guha

Today's Economic Times has carried two controversial essays, seeking to dispute with each other, on the state of affairs at the Nehru Memorial Museum and Library, New Delhi. The pro-change group comprises eminent authors like Ramachandra Guha and Rajmohan Gandhi. The pro-status quo group comprises Madhu Kishwar, among others. The two essays, linked here, represent the views of these two groups. As I was intrigued by the silence of the pro-change group on some of the allegations made by the other, I requested Guha to share his response with us, if any. We are thankful to Guha for sharing an advance copy of his letter to the ET, along with a copy of the letter written by the pro-change group to the Prime Minister.

Letter for publication in the Economic Times

The article by Kishwar et al (ET, Saturday, 27th June) repeats the canard that the memo on the Nehru Memorial Museum and Library recently sent by 57 scholars to the Prime Minister was motivated by me because of irregularities in a selection committee I was involved in. This is a palpable slander—the selections were made fairly, and I have nothing to hide. The scholarly community is well aware of the decline in the NMML. The note to the PM exhaustively documents the reasons for this and suggests concrete methods for its reversal. That said, I do have a personal stake in the saving of the NMML—and it is this. All my books, including ‘India after Gandhi’, were written on the basis of its collections. Intellectually and professionally, I have been made by it. I now fear that with its decline, younger historians may never have the chances and opportunities that were once open to scholars of my generation. My personal reputation can survive any amount of ill-informed or motivated criticism. Whether the NMML can survive even a further year of systematic mismanagement is another matter.

Wednesday, June 24, 2009

This story in Daijiworld, a chatty and informative portal focusing on Karnataka's coastal districts brims with intrigue, mystery, and skullduggery about a plot to kidnap an advocate in Mangalore. What I found most interesting is the group photograph of those arrested. Their faces are masked as if they are about to be extraordinarily renditioned and they are squatting before their captors, who appear to be policemen in plain clothes. I wonder if there is any legal provision or rule that regulates such photographs, even in sensational criminal cases to preserve the integrity of the criminal justice proceedings that might follow?

This morning's Mint carries an assessment of India's best law schools. Surprisingly, the National Law School of India is on top, although it is closely followed by NALSAR, Hyderabad and NUJS. The article though focuses largely on NUJS, which has made impressive strides in recent years in attracting good teaching talent to its campus in Kolkatta.

Tuesday, June 23, 2009

To sign this letter, please click here, or email the Centre for the Study of Social Exclusion. Additional resources (including comparative legislations) are available here.-------------------------------------------------------------------------------------22nd June 2009

In her address to Parliament on 4 June 2009, the Hon’ble President promised the constitution of an Equal Opportunity Commission to combat discrimination. We welcome this announcement, and write to you to further the public debate on equality of opportunities.

As you are aware, the Rajinder Sachar Committee’s ‘Report on Social, Economic and Educational Status of the Muslim Community of India’ (2006) recommended the constitution of an Equal Opportunity Commission to look into the grievances of deprived groups, and that the idea of providing incentives for diversity should be explored. Two expert committees under Dr. Madhav Menon and Dr. Amitabh Kundu were constituted to consider these recommendations respectively. The Menon Committee Report (2008) proposed an Equal Opportunity Commission Bill to prohibit discrimination against ‘deprived groups’ defined on certain grounds such as sex, disability, religion, caste, language etc. The Kundu Committee Report (2008) recommended the constitution of a Diversity Commission to oversee the incentivisation of diversity in education institutions, employment establishments and housing societies. The proposed ‘diversity index’ is sensitive to religion, caste and sex.

These recommendations represent a paradigmatic shift in India’s approach to equality. Moving beyond an exclusive focus on reservations, they explore a combination of antidiscrimination and diversity promotion measures to pursue social justice. They also recognise that discrimination takes place on multiple grounds, and that compartmentalising suffering through group-specific measures may spawn politics of resentment and competition. Finally, they transcend the divide between public and private actors and apply equally to all. Yet, the obligations they seek to impose on private actors are no more onerous than those imposed on their counterparts in many liberal democracies.

For these reasons, we laud the recommendations and support the proposed measures for equal opportunities and diversity. However, the draft proposals leave too many unresolved issues for the Commission to sort out in the future. We think that this is a recipe for much litigation. Rights and obligations, insofar as it is possible, should be clearly laid down in the legislation itself. We make the following suggestions towards broadening the public debate on these proposals:

A. Interlinking equal opportunity and diversity:(i) Antidiscrimination and diversity promotion are related ideals. They should form part of a single ‘Equality Bill’ with a single regulatory and enforcement commission. Distinct bodies for monitoring the prohibition on discrimination and promotion of diversity is not only wasteful, but may result in counterproductive turf-wars.(ii) The connection between the ideas is not merely institutional but also conceptual: the ‘diversity gap’ in any establishment should be relevant to (but not determinative of) the adjudication of complaints of discrimination against that establishment.

B. A general duty to reduce inequality:

(iii) The objective of reducing socio-economic deprivation should be taken into account by all public bodies (widely defined to include not only bodies established by the Constitution or any law, but also any other bodies performing public functions) while framing policy in their respective fields of activity.

C. Scope of protection against discrimination:

(iv) The list of grounds on which discrimination is prohibited in the Menon Committee Report includes ‘sex, caste, language, religion, disability, descent, place of birth, residence, race or any other...’ ground. While we welcome an open-ended list in order to accommodate legitimate demands in the future, other autonomy-infringing grounds like ‘pregnancy, sexual orientation, gender identity, occupation, skin-colour, political opinion, age, membership of trade unions or other associations, number of children, tribe, marital status’ should also be included.(v) The ‘deprivation index’ should include political, social, cultural and material deprivation, evidenced by inadequate representation of the group in public institutions, violence and hostility faced by its members, prejudice and negative stereotypes prevalent against the group, and its economic, social and educational backwardness.(vi) The legislation should have a clear statement prohibiting ‘direct discrimination’ or ‘indirect discrimination’ against, and ‘harassment’ or ‘victimisation’ of, any member of a deprived group defined by any of the protected grounds. These terms should be clearly defined. Discrimination based on ‘food preference’, when it has a disproportionate impact on a deprived group, should be expressly provided as an instance of indirect discrimination.(vii) The legislation should clearly provide that the claimant does not have the onus of proving discriminatory intent.(viii) Direct discrimination, as a general rule, should not be justifiable. Any exceptions (for example, medium of instruction in schools vis-a-vis language discrimination, or age of majority vis-a-vis age discrimination) should be specifically provided in the statute. Indirect discrimination may be justified only if the impugned measure is a proportionate means of achieving a legitimate objective—mere reasonableness of the measure should not be sufficient. Harassment and victimisation should not be justifiable under any circumstance.(ix) The sectors in which discrimination is prohibited should not be restricted to employment and education. We agree that a phased introduction of prohibition, as recommended by the Menon Committee Report, may be desirable for reasons of feasibility. However, given the prevalence of discrimination in the housing sector, its exclusion from the immediate scope of the legislation is not warranted.(x) All public bodies (widely defined to include private bodies performing public functions) and political parties should be required to refrain from discriminating in all their activities.

D. Scope of diversity promotion:

(xi) The ‘diversity index’ proposed in the Kundu Committee Report is sensitive to sex, religion and caste. We suggest that tribe and language should also be valid grounds for formulating a diversity index.(xii) A clear statutory obligation to reduce diversity gap should be imposed on all public bodies (widely defined to include private bodies performing public functions) and other establishments that contract with governments.(xiii) Diversity promotion should be a precondition for all government subsidies, grants, contracts etc, not only at the central level, but also at the state and local level. Establishments with narrower diversity gaps should get preferential access to governmental grants etc.(xiv) Bodies and establishments covered by the two preceding clauses should publish their diversity gaps and their plans to promote diversity. Citizens should also have an enforceable right to this information.(xv) In case of establishments not covered above, the right to information regarding their diversity gap should nonetheless be available to their employees/ residents/ applicants/ students etc.

E. Enforcement Mechanism:

(xvi) The single Equality Commission should be independent of political interference, but subject to political scrutiny and judicial review, while formulating the deprivation and diversity indices. Bipartisan appointment, involvement of civil society and transparency obligations on the lines of recently constituted bodies such as the Central Information Commission should be considered.(xvii) Draft deprivation and diversity indices should be published on the Commission’s website and elsewhere for public debate before finalisation. Reasons and evidence for the identification/non-identification of any group as ‘deprived’ should also be publicly available.(xviii) Relationship with the SC/ST Commission, Backward Classes Commission, Minorities Commission, National Commission for Women, and the National Human Rights Commission should be clearly specified. Emphasis should be on co-ordination and data sharing. The Equality Commission is not based on any single identity and its proposed mandate is distinct from these pre-existing commissions. Yet, it can learn from their experiences—legislation should facilitate this institutional learning.(xix) The proposed Equality Commission in the Menon Committee Bill has extensive powers for investigation, data gathering, auditing, advocacy and advisory functions. However, the recommendatory nature of the orders and ‘codes of practice’ limits the effectiveness of the Commission. Further, while reliance on voluntary compliance and emphasis on mediated settlements is entirely commendable, it fails to elevate the ‘equal opportunities’ to the status of ‘rights’. The lack of effective enforcement machinery thus, dilutes the larger mandate of the Commission and needs to be remedied at the very outset.(xx) The scope of membership of Facilitation Centres (provided for in the Menon Committee Bill) should be widened, and its powers and functions should be clarified and strengthened.(xxi) Section 39 (b) in the Menon Committee Bill elevates the ‘Equal Opportunity Practices Code’ to the level of a “Standing Orders” under the Industrial Disputes Act, thus making it binding and enforceable. However, the single Equality Bill should clarify that the scope of establishments covered by it is wider than that under the Industrial Disputes Act, and should also provide for a mechanism for enforcement of these Codes in establishments that do not fall within the scope of the Industrial Disputes Act.(xxii) Likewise, the powers to investigate and audit in Sections 23-25 and Section 27, should culminate in effective action in the event of widespread discriminatory practices, or victimisation.(xxiii) The Menon Committee Report envisages a group-driven complaints model rather than an individual-driven one. We suggest that in addition to group rights, individual victims of discrimination should be given a right to mandatory orders, injunctions, declaratory orders, compensation, reasonable accommodation, protection orders against harassment and against victimisation for making a complaint, and the right to information about the diversity gap in their establishment.(xxiv) In case of direct discrimination, harassment or victimisation by public bodies, part of the compensation amount should be recovered from the salary of the person(s) responsible for such discrimination, harassment or victimisation.

These measures are too important to be passed in haste and without wider public debate. We hope you will give these suggestions as well as the experience of jurisdictions with comparable legislations (such as South Africa, Canada, the United Kingdom, the European Union and the United States) due consideration and circulate the draft of a single ‘Equality Bill’ for further public debate.In anticipation,

Lawyer turned detective novelist Aditya Sudarshan’s debut offering borrows at least one idea from Arthur Conan Doyle’s creations. A Nice Quiet Holiday has two men working in tandem not unlike Sherlock Holmes and Watson. The detective is a portly, courtly and old worldly Additional Sessions Judge from Delhi, Harish Shinde. Shinde’s law clerk Anant, the narrator of the story, is not unlike Watson doing most of the spadework for the Judge who prefers to be an armchair detective. No, Judge Shinde does not smoke a pipe or wear a bowler hat, he’s too Indian for that. However, just like Holmes, Judge Shinde is a student of human nature and does not hesitate to spout arguments and analyses at the drop of a hat (or turban if you will).

It was not just Arthur Conan Doyle’s creations that Sudarshan’s work reminded me of. The setting for the crime, a murder, is a family home in the foothills of the Himalayas where lots of friends, family and guests have gathered, smacks of something from an Agatha Christie, with a heavy Indian flavour of course. Except for the first chapter of the novel, the entire story is played out in that family home.

Sudarshan writes well, in simple English and in a manner that is both elegant and pleasing. In fact, his style of writing is good enough to iron over the few minor cracks in the story. For example, as Sudarshan explains, clerking for Judges is not a common practice in India, especially in the case of District Judges. However, Sudarshan’s style of delivery makes it look very natural.

One of Sudarshan’s achievements is that he treads the fine line between pulp fiction and literature very well. A Nice Quiet Holiday has all the ingredients needed for a best seller. It has a murder, exciting court proceedings, a tall and intelligent lawyer (the narrator), a damsel almost in distress, mob violence and a philosophising detective. Despite the presence of so much spice (or masala if you so prefer), Sudarshan’s fine writing makes it difficult to label ‘A Nice Quiet Holiday’ as pulp fiction. The best bit about this novel is that Sudarshan keeps us guessing till the end as to the identity of the murderer.

A Nice Quiet Holiday runs to 224 pages and the word count doesn’t exceed 50,000 (my own estimate). In other words, it is a fairly quick and light read and is ideal for train journeys. It wouldn’t surprise me if the judge and his clerk make many more appearances in Sudarshan’s future works and solve more crimes.

Sunday, June 21, 2009

Journalists as Media Advisors

As a colleague, I am delighted that Mr.Harish Khare of The Hindu has become the new Media Advisor to the Prime Minister.. But as one of his regular readers of his column in The Hindu, I'm disappointed for two reasons. First and foremost, I will be missing his unique perspective on contemporary issues before the nation. The second reason, I know, is debatable. Can journalists, like others, be guilty of conflict of interest? Given the fact that Mr.Khare has at times been critical of the Government's functioning in his columns, how will he now defend the Government as the PM's Media Advisor? In his columns here and here, Mr.Khare is critical of the former CEC, M.S.Gill first becoming an MP, and then becoming Sports Minister at the Centre. True, a journalist is not performing a Constitutional duty like the CEC. But the basis of criticism could be the the same: conflict of interests. Two of his recent articles on Mandate 2009 are available here and here. (I have since modified my view, and edited the original post, as explained in this following update)

UPDATE: This post set me thinking on what exactly are the duties of the PM's Media Advisor. Speech writing and organising the PM's interactions with the media are the obvious duties. Besides, the Media Advisor is also the PM's spokesperson, explaining the PM's decisions (and non-decisions) to the media both on record and off-the-record. Well, these are duties over which one does not expect conflicts of interest from Mr.Harish Khare, even if he had been critical of the Government at times. As far as the possibility of the appointment influencing how a journalist writes, I think it is very remote, as the PM will inevitably chose a person whom he trusts and who has been successful in the profession. Going through the names of some of his illustrious predecessors, I am sure Mr.Khare has an excellent opportunity to observe the PM at close quarters, preserve every piece of record, so as to be able to write his memoirs after he quits office. I found the contribution of H.Y.Sharada Prasad as the Media Advisor to Indira Gandhi very fascinating. He worked for an obscure Government publication, Yojana, before being elevated to the post by her. Readers would find the following links useful to understand the contribution of Sharada Prasad, who passed away recently. 1.Obituary in The Hindu2.Sanjaya Baru's article in Outlook.3.His autobiography.

The new Speaker,Meira Kumar, has given a spate of interviews to the media ever since she assumed office. Among other things, she has mentioned that the Constitution does not stipulate that the Speakers should resign from their parties at the time of election as Speaker. Well, the 10th Schedule to the Constitution does give the option to the Speaker to do so. The word 'stipulate' means to require as a condition. In the 10th Schedule, the option is implied, as Paragraph 5 of the Schedule makes it clear. But if you read Paragraph 5 carefully, it is actually a provision exempting the Speaker from paragraph 2(a) of the Schedule which lays down that a Member voluntarily giving up membership of a political party would stand disqualified as Member. Therefore, Paragraph 5 clearly expects the Speaker to voluntarily quit the party membership on election as Speaker, and avail the benefit of exemption from disqualification guaranteed by Paragraph 5. If one reads Paragraph 5 simply as giving an option to the Speaker, then the Paragraph 5 would become redundant, and that could not have been the objective of Parliament which added this Schedule to the Constitution.

In a sense, Paragraph 5 of the 10th Schedule, even as it aims at curbing defection, gives meaning and substance to the convention that the Speakers must be politically neutral while performing duties as the Speaker. Successive Speakers since 1985, when this Schedule was added to the Constitution, ignored Paragraph 5 as if it did not matter. The former Speaker, Somnath Chatterjee, during the thanks giving speech in Lok Sabha in 2004 specifically mentioned that he would be lenient to the Members belonging to the Left.(The link to his speech strangely is not active after his term is over!) He said on June 4, 2004: "As a Leftist, as one belonging to the Left Party, friends on my left may be rest assured that I have a natural leaning towards the left."

Meira Kumar is also reported to have defended the contentious Women's Reservation Bill in Parliament, and has expressed the hope that it would be passed during her term. Mail Today has questioned her view as inconsistent with the neutrality of her office. The former Speaker, Somnath Chatterjee was accused by Amar singh of Samajwadi Party of influencing the party's decision to bail out the UPA Government on the contentious Indo-U.S. nuclear deal in 2008 - an allegation which Chatterjee later denied. But the fact remains that Chatterjee did not hide his political views even before his term as Speaker was formally over. He questioned the CPI(M)'s decision to withdraw support to the UPA Government on the nuclear issue. Therefore, despite his denial, Amar Singh's claim seems plausible.

Should Speakers conceal their views on contentious political matters? Well,prudence would require that in order to appear as a neutral Chairperson while conducting the House, she does not appear to have already made up her mind on a contentious issue, to be resolved by the House. Otherwise, she might be accused of lobbying for support or opposition to a measure to be debated in the House, when the House alone independently could decide the matter either way. If at all, she plays a role only if she is expected to exercise her casting vote in the case of equality of votes, under Article 100. Even here, she is expected as per convention, to vote for status quo, rather than for change, notwithstanding whether her vote would be in favour of her party or not. Thus if there is an equality of votes (I just imagine, I am sure there will not be any, given the broad support to the WRB)on the WRB, the Speaker would be expected to reject the Bill, because the Bill aims to change the current representation in the Parliament and state legislatures.

In the U.K., the House of Commons is also set to elect a new Speaker to fill the vacancy created by the last Speaker who resigned on the expenses row. I was surprised to find while reading this article and the blog post that the issue of neutrality of Speaker, apart from other things, is also an issue before the Members.

The Outlook magazine must be commended for doing a cover story on racism at home, even as Indians cannot stop protesting against the racism they face elsewhere. It follows this recent report in the Telegraph about the racist abuse faced by a Ugandan student in Kolkata. It is echoed by the experiences of a gay black American in Delhi, whose travels in India with his white partner (and the differential treatment they received) only accentuated his awareness of his race. Another story in Outlook talks about NRI families and their complex relationship with race. The issue also covers racism faced by Indians in India: those from the North-Eastern states and those born with a darker skin.

I have discussed discrimination against Muslims in the past, also also measures proposed to combat it. Outlook has done a good job of holding up a mirror to our society. These stories tell us that it is not just caste, sex and religious discrimination that India needs to worry about. Racism is alive and kicking. So is homophobia. Disability, language, marital status and many other labels also invite prejudices, stereotypes and hostility.

Update: The Chief Minister of Mizoram has spoken about the racism he has faced in India. Although, a day later came the denial. NDTV's coverage of the issue (and the wider context of racism in India) is here. In the video, Mani Shankar Aiyer denies racism within the country. Ravi Shankar Prasad puts it to ignorance, but insists that Indians are not racists. Malena account of being black in India was brished aside as her personal experience by Prasad. It was amazing how defensive some of the responses were, lauding India's 'unity-in-diversity', its history of tolerance, its composite culture, its official role against aparthied. Yes, these achievements (even a sceptic will find 'some' truth in these claims) are laudatory, but do they require us to deny experiences of people who suffer racism in our country? How can we deal with the issue if we continue to deny it exists?

Saturday, June 20, 2009

Press reports tell us that security forces are 'set to take control' of Lalgarh in a few hours. It seems that the various groups involved in the conflict include 'Maoists', 'CPM-supporters', 'Trinamool-supporters' and the 'police'. There are no 'people' left in this conflict. This moving video made by a fact-finding team in Lalgarh highlights the role that the police has played in the area. Villager after villager narrates tales of rape, torture and illegal detention by the police, which acted with complete impunity. Add to that a denial of access to even the meagre social security measures provided by the Indian state, and you have all ingredients for a rebellion. Bengal, Chhattisgarh and Gujarat are perhaps only extreme examples of the police state that India is, and a colonial system of governance that continues to thrive.

The rot is set too deep. The CPM government being routed in the next assembly elections will be well-deserved. Questions of land-ownership, industrialisation and land-acquisition will require political solutions. But an important part of the problem, as the video demonstrates, is not just what the state does but how it goes about doing it. While reasonable people may disagree on industrialisation, how can there be any disagreement on torture, rape and illegal detention? Will the Mamata Banerjee administration change this colonial system of policing and ensure structural police reforms in Bengal? Will her administration repeal impunity provisions, and ensure accountability for acts of torture? Given that most of these issues are covered by the concurrent list, why doesn't the centre act towards preventing more Lalgarh's rather than merely react to them with even more force?

Some of the above call for a swift security solution to the problem. Yes, violence by Maoists must be checked, but if all we get is a security response without accompanying structural reform of policing and governance, we can rest assured people in Lalgarhs all over the country will keep 'boycotting' the police.

[Pratiksha Baxi is no stranger to us, having written her first provocative post recently for us on tabloidization of law. Today, she seeks to initiate another debate on the aberrations of academia in our universities through this guest post.]

The discourse on the right to information has affected university spaces in more than one ways. One of the foremost shifts has been in the realm of everyday discourse within the work space. Minimally, the spectre of a potential RTI application has re-structured the manner in which records are maintained and decisions taken. While the right to information is usually seen as increasing work load, a form of harassment or at best, bad manners, it has not really inaugurated a new culture of accountability. Take the instance of the process of hiring academics in Universities. Despite the growing number of opportunities for University jobs, many talented researchers struggle to make ends meet and fight failing confidence due to repeated injustices. Yet biographies of academic discrimination remain the gist of whispers and gossip. These do not translate into a constructive discussion of how we may make higher education accountable and hospitable.

A lifetime in University spaces in Delhi, across disciplines, amounts to cataloguing histories of humiliations and witnessing angst about the romance with an uncaring academia. Every other department acquires its own history through the years which constitutes its present. The divisions within each department over ideology, standards, schools of thought and personalities leave behind a wake of blameless victims in every other generation of young and then not so young researchers who aspire to teach. Not unlike kinship or caste groups, these departments classify individual academics and future generations of students [who may then aspire to teach] into set lobbies. Norms of sociality observed elsewhere in life are suspended when dealing with these outsiders – such that even everyday courtesies such as a greeting are withdrawn. It is not uncommon for academics to describe how deeply personal such hostilities are. Gossip about the deemed outsider determines the interpretation of merit. We realise again and again that the Curriculum Vitae needs the energy supplement, a real time Facebook.

The recluse or the renegade who resists the system of patronage by enacting a refusal of sycophancy, blind loyalty or obedience is habitually punished. S/he is punished for not belonging to the correct genealogy, for ideological differences, for lack of social capital or even for not being charming enough. Not unlike ragging, the temporal lag wherein inter departmental politics plays out to deny, exclude or humiliate the textual children of hated colleagues is routine in our Universities. Those who speak of principles and academic standards to ask difficult questions often face situations wherein everyday work life is made horrendously difficult.

Why are our professors not disturbed by the wide spread perceptions that they demand a following that must be submissive? Surely this is a poor reputation? Why do we not have a tradition of critique and care that co-exists? Instead, we are culturally disciplined by the values ascribed to the “guru-shishya” parampara, no matter how secular everyone is. This normalising discourse means control over students and aspirants to the profession from using the languages of rights and discrimination as a form of public critique. This disciplinary discourse prevents the spirit behind the people’s movement which wished to create the right to information as a route to accountability from actualisation.

Rather than create a restfully active environment conducive to the life of the mind, we witness severe unhappiness marked by insecurities, envy and politics of the most banal kind in the academia. Surely Universities must be spaces where we learn how to converse – confer – however, very often such spaces, especially staff council or faculty meetings, enact violent or mannerless forms of communication. Why is it that there is no discussion about why does higher education promote the ethic of competition and humiliation rather than care and hospitality?

The problem of sexism in universities is part of a larger culture of valourising patriarchal values of patronage and docility. Feminists cannot succeed in challenging the gross manifestations of gendered discriminations within the academia, unless a foundational cultural challenge is offered to how we wish to be, as academics, at our workplace. Rather than reproduce the canon, we ought to welcome newness, recognise transgression and autonomy as cherished values and promote an ethic of accountability. It is our responsibility to assuage hurt, correct past injustices and find a different voice. For every broken person who is unable write after encountering the inhumanity which abounds in our universities, each one of us is responsible for destruction rather than creation of the life of the mind. Is it not high time we find a different voice?

Wednesday, June 17, 2009

When Jayalalithaa and Ram Vilas Paswan complain about rigging in the EVMs, we ridicule or pity them, convinced as we are about the strength of EVMs. When Subramanian Swamy writes about the issue, we,however, need to take notice. Here, I am giving the links to the articles which Swamy refers to (+ an interview on the outcome of Iran elections), so that we could take an informed view about the issue.

It may look odd to consider the suspicions about the EVMs along with the lessons from the Iran elections. But the juxtaposition is not completely misplaced. The Indian elections are not free from irregularities - the case of missing names of voters from the voters' lists across the nation due to various factors, including that of the E.C.'s limitations, is predominant among them. Yet India has been lucky so far in that no losing Opposition leader has seriously challenged the credibility of the results in almost all the general elections.

Tuesday, June 16, 2009

The second part of A.G.Noorani's review article in Frontline chronicles the hung Parliament situations at the Centre and how the Presidents addressed them. What is relevant for our understanding is how he draws the necessary lessons for future Presidents, when faced with hung verdicts in elections. Referring to 1969 split in the Congress, he says that the then President V.V. Giri rightly did not ask her to prove the majority of her group in the Lok Sabha. That innovation came later. But it is not clear whether he disagrees with this innovation. I am also not convinced how he defends K.R.Narayanan's decision to ask Vajpayee to seek a vote of confidence in 1999, after AIADMK withdrew support. Clearly, the situation was similar to the 1969 split. True, Narayanan innovated. But if V.V.Giri was correct in 1969 in ignoring the split in the Congress, clearly Narayanan could have done the same, and the Opposition would have been left with the option to move a no-confidence motion. That decision of Narayanan unnecessarily helped the BJP to emerge as a martyr, having lost the trust vote by one, and enabled the NDA to return to power in the 1999 elections.

This is how Noorani sums up his article:

1. There is no rule that requires the largest single party to be invited as a matter of course. It comes into play only if the ruling party loses its majority and others have to be sounded out. Even so, any coalition established thereafter acquires an overriding claim provided it can prima facie demonstrate majority support. There is in law no distinction between a pre-poll and a post-poll alliance.

2. Indian precedents sanctify written assurances of support to the leader of a coalition, plus assurances of stability by way of a minimum common programme, even if it is drawn up later. Some proof of cohesion is necessary.

3. There is no rule of proving majority support within a time stipulated by the President except where there is an acute crisis of confidence that mandates transparency by all, the President included.

4. In the last resort, a minority government must not be ruled out. The House will be the judge.

The article is useful for a discussion of the Sri Lanka’s Supreme Court ruling on August 16, 1993, in Major Montague Jayawickrema and another vs M.A. Bakeer Markan and another.

Monday, June 15, 2009

Thanks to my colleague's alert on Twitter, I found this debate in Maldives extremely interesting. While the author of the article is certainly against the widespread inclination to grow beard among the people of his country, and challenges the view that growing beard is part of Islam, the fact that the Human Rights Commission of Maldives directed the reinstatement of an employee, dismissed for refusing to shave, is a pointer to the emphasis on religious freedom in that country, as compared to ours.

We, on this blog, had the opportunity to debate the right of a student, Mohammad Salim, in Madhya Pradesh who was forced to leave a minority-run school, for refusing to shave. Salim has now filed a review petition in the Supreme Court, aggrieved by Justice Katju's hurtful remarks while dismissing his petition challenging the school's decision. Whatever the outcome of the petition, both Salim and Justice Katju can rely on this article on Maldives to support their respective positions.

Sunday, June 14, 2009

This article in today's LA Times discusses the potential threat of stem rust on wheat, the world's most widely grown crop. Painting scary stories like this article does - it claims up to 80% of the world's wheat production could be taken out - helps sell newspapers, but such stories are occasionally right. It also highlights the world's dependence on a handful of key crops.

In India, these crops are wheat and rice. This is not by accident, but arose out of the development of India's agricultural policies, particularly it's subsidization of wheat and rice through the Public Distribution System.

In the United States you have a similar subsidization of these two crops, but also corn. Because of cheap subsidized corn the American food industry has remade America's, and the world's (middle class), diet - we eat corn-fed animals, in corn-based buns, and drink corn syrup sodas - McDonald's, Dominos, Subway, Pizza Hut are all products and exports of this policy. Mind you, it's not a particularly good policy for a country suffering from chronic obesity in much of its population.

In India, the issues are a bit different, but the policies are similarly misaligned with its most pressing problems. Here the chief issue is basic food security. There is a large population suffering from not only malnutrition, but also protein deficiency (which arguably is the largest malnutrition problem in India right now and reportedly getting worse). Meanwhile, water shortages are putting increasing pressure on farmers and crop yields threatening India's agricultural base.

The Public Distribution System just doesn't seem to match up to these challenges. Wheat and particularly rice are two of the most water intensive staple crops you can grow, yet the government promotes them across the country even where there are water shortages. Neither has much protein in it, especially compared to pulses or coarse grains, but when the government does subsidize another crop it is sugar (which is even worse).

Now including pulses and coarse grains, which also generally use less water, in the Public Distribution System is not without some potential negative repercussions. Some of these crops are more likely to fail than rice or wheat leaving a poor farmer in a pretty dire situation, but as we can see from worries over stem rust no crop is immune from potentially devestating failures and one can design policies so either farmers are insured against these risks or the poorest farmers are incentivized towards more robust crops. Some argue that the PDS with its well-documented inefficiencies should just be scrapped and the government should go in for money transfers to the poor. I'm not going to get into this debate here, but for now and the foreseeable future PDS is with us so we might as well make it work better and I personally think subsidization of certain crops does make sense for poor countries and even rich ones.

For those interested in learning more here is an article in the Mint from a couple years ago on increasing protein deficiency in rural India, a debate in Parliament from some time back on including pulses in PDS, and an article from InfoChange on the water usage of crops in India. Here's the right to food website's section on PDS, although it mostly focuses on implementation and uptake problems and proposed solutions. Unfortunately, given the scope of the problem and the huge numbers of people it effects there isn't as much written about the PDS as there should be, especially in the popular media. The challenges are pressing though and the potential for improvement wide. Hopefully, this will be an issue the new government takes up with renewed vigour.

Saturday, June 13, 2009

The Epidemic Diseases Act 1897 is being invoked against uncooperative swine flu patients who refuse to be segregated in a hospital to prevent its spread. The Act can be invoked using Section 188 IPC, (Disobedience to order duly promulgated by public servant). An offence under this provision can invite simple imprisonment of one month or a fine of Rs.200 or both. Strangely, Section 4 of the Epidemics Act rules out judicial review! While no one suggests that the Act is likely to be misused against non-patients who are uncooperative with the officials, is it necessary to arm the Executive with such an extraordinary power so as to rule out scope for judicial review? The ingredients of the offence under the Act include knowledge of the order which is allegedly disobeyed by the accused, even though intention to defy the order may not be present. If the accused does not know that such an order to segregate him or her at a hospital exists, there is no remedy under the Act.

It may be interesting to find out whether this Act of 1897 was invoked during the plague in 1994. Curiously enough, the phraseology of the Act may suggest that it cannot be invoked against swine flu patients. Although the Act does not define the word 'epidemic', dictionaries define the word as a widespread occurrence of a disease in a community or a region at a particular time. Considering the isolated cases in India, it is still not an epidemic. The word 'pandemic', on the other hand, refers to a disease prevalent over a whole country or the world, which is what swine flu has been declared to be by the WHO. According to Wikipedia,, a few cases of occurrence of a rare disease may be called an epidemic, but I couldn't find an authoritative definition of the word to convey that sense.

UPDATE: On the other hand, do the authorities feel that the country is threatened with the outbreak of the epidemic - a possible ground to invoke this Act? Do the authorities also find that the existing legal provisions are insufficient to ensure segregation of such patients - another requirement to justify the use of the Act? Well, there are no clear answers.

Saturday, June 06, 2009

The near-clear mandate of 2009 meant that the President is free from the dilemma of whom to appoint as the PM. But the dilemma is worth addressing, if only because it is by no means certain that we will be free from fragmented legislatures either at the Centre or in the States in the future. A.G.Noorani in this review of three recent books on British Constitution (of which one is a comparative study)attempts a serious critique of the Sarkaria Commission report, the Report of the Committee of Governors, (1971), the Report of the Administrative Reforms Commission on Centre State Relations (1969) and the M.N.Venkatachaliah Commission (NCRWC). Noorani dismisses all these reports, as being incompetent. He then takes up Art.75(3). He refers to Ambedkar's view in the CAD that Ministers could belong to different parties. (I think L.K.Advani's view that the 2009 mandate favours a return to two-party system is debatable) . Noorani reveals his disagreement with T.T.Krishnamachari, a member of the Drafting Committee, who was responsible for the dropping of the Instrument of Instructions for the President (Draft Schedule III-A). Noorani claims that time has exposed the falsity of the argument that codification was unnecessary and superfluous, and that the directions to the President and the Governors really should arise out of conventions.

According to Paragraph 2 of the Instrument, the President should appoint a person who has been found by him most likely to command a stable majority in Parliament as the Prime Minister. Noorani believes that it can still be inserted in the Constitution with suitable changes. Noorani interprets the word "likely" to suggest that the President acts on a balance of probabilities, on a preponderance of party strength and he must be assured of the stability of the government. But he also cautions that stability is not to be probed into any depth in a partisan manner and that what is required is prima facie proof of cohesion, a demonstrable will to pull together in governance. He later clarifies it to suggest that the test is not necessarily an arithmetical majority but a preponderance that renders any challenge futile. (italics supplied by Noorani)

Watch this space for a discussion of his second part of the review article in Frontline, next fortnight.

Friday, June 05, 2009

The Government appears set to legislate on the Equal Opportunity Commission. The President's address to the Lok Sabha promised to 'set up an Equal Opportunity Commission'. The Minister for Law and Justice, Veerappa Moily, mentioned the possibility of 'US-model affirmative action' provisions in the private sector, although he did not appear to have used the word 'diversity'. [Update: Here are the excerpts from the interview with Moily - he sticks to 'affirmative action', and steers clear of any talk of 'reservations'. The US reference makes it clear he had 'diversity' in mind.] The Minorities Affairs Minister Salman Khurshid, while repeating the President's promise of an EOC, also seemed aware of the distinction between 'reservations' and 'affirmative action'. Mayawati, on the other hand, has criticised the President's address for being silent on quotas in the private sector. It may be noted that Mayawati already has a policy in place which imposes contractual affirmative action obligations on companies that her government deals with, an idea very similar to the one recommended in the Diversity Bill. This concept of 'buying social justice' is discussed here.

The issue of prohibition of discrimination and diversity promotion has been discussed on this blog in the past, but given this renewed and apparently urgent focus of the government, it needs revisiting. These are encouraging soundbites, but the current draft Equal Opportunity Commission Bill (Menon Report) and Diversity Bill (Kundu Report) have some loopholes. I had made the following points in this article in the Economic and Political Weekly:

1. There is no need to for separate commissions for Equal Opportunity and Diversity. Multiple commissions will only increase turf wars between bodies dealing with related matter. There should be a single Equal Opportunity and Diversity Act.

2. Diversity and Equal Opportunity should be linked not only institutionally but also conceptually. The single Act must provide that the diversity-gap for any employer/educational institution/housing society should be relevant to (but not determinative of) complaints of discrimination against them. [It may be noted that diversity obligations will cover only three grounds (sex, religion and caste), whereas Equal Opportunity is a broader concept applying to a much wider and open-ended list of grounds. The conceptual connection between them can therefore exist only in case of sex, religion and caste.]

3. Housing cannot be left out of the Equal Opportunity Bill, as is the case at present. This is one sector which needs urgent attention, as has been previously debated on this blog and elsewhere.

Thursday, June 04, 2009

The election of Meira Kumar as the Lok Sabha Speaker has led to a curious debate as to whether the Congress Party's decision is an exercise in tokenism or a recognition of talent.(talent or tokenism). Whatever the reason for the decision, there are clear expectations from the office that the Speaker ought to be neutral in her conduct of the House. I was disappointed after reading the synopsis and the debates of the Lok Sabha proceedings on the election of the Speaker, that no one, including the new Speaker, made any reference, let alone lip service, to the desirable convention that the Speaker, after election, quits the membership of the party, on whose ticket she was elected to the House. The Tenth Schedule to the Constitution gives such an option to the Speaker to do so. The previous Speaker, Somnath Chatterjee, clearly rued the fact that he did not do so, and went down in history as the only Speaker to have been expelled from his party later for other reasons. He wished that his successors revived the convention of Speaker quitting the party membership, on election to the office of the Speaker.

This is not to suggest that Meira Kumar may well prove to be a partisan Speaker, because she did not quit her party. She may well satisfy the Opposition, but had she formally quit her party, it would have certainly enhanced the prestige of her office. The first Speaker of the Lok Sabha, G.V.Mavlankar, failed to follow the precedent set by his predecessor before Independence, Vithalbhai Patel, by formally resigning from the party. The convention was revived by Sanjeeva Reddy when he became Speaker in 1967, but his successors did not follow the convention. Somnath Chatterjee's problems must have convinced Meira Kumar that she must revive it. But she missed that opportunity.

*Relevant links:*Lok Sabha debate on the election of new Speaker, June 3, 2009.*Synopsis of the Lok Sabha debate on the election of new Speaker, June 3, 2009.

Monday, June 01, 2009

It has now been reported that the Rajya Sabha Chairman has constituted a three-member committee to investigate the grounds on which the removal of Justice Soumitra Sen of the Calcutta High Court is prayed for. The three members are Justice D.K. Jain of the Supreme Court, Justice T.S. Thakur, Chief Justice of the Punjab and Haryana High Court, and Fali S. Nariman, senior advocate, Supreme Court. But in view of what Fali S.Nariman has reportedly said about Justice Sen's impeachment recommendation of the Chief Justice of India, should he not have recused himself from the committee?

The Nalsar Student Law Review (“NSLR”) is a student initiative, the primary aim of which has been to encourage legal writing and scholarship among students. The first volume of the NSLR was released in 2005. It was intended to serve as a medium for students to express their opinions and conduct substantial analyses of contemporary and raging legal issues, an intention which has been carried forward in the subsequent three issues of the law review.

The NSLR, now in its fifth year of publication, with the next issue (Volume 5) scheduled to release later on this year is the flagship journal of NALSAR. The NSLR has been published annually. However, the Board of Editors propose to convert it into a bi-annual law review. The law review does not seek to restrict its reach merely among NALSAR students, but invites manuscripts from students across the country for publication. Besides publishing the student law review, the Board of Editors also propose to conduct other activities promoting legal scholarship among students. Some of such other activities include essay-writing competitions and contract-drafting competitions.

The NSLR, has also initiated an E-Journal, the editorial policy of which is available at the law review's website. The Board of Editors invite submissions for the E-Journal of the NSLR as well as for the fifth issue of the NSLR. Submissions for the E-Journal shall be accepted on a rolling basis. However only those entries which are received before July 15, 2009 shall be considered for the fifth issue of the NSLR. Any submission after this date shall be considered for the next issue of the NSLR; however, it shall immediately be considered for the E-Journal.

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